Month: October 2021

Lydia Kedir and Dagnachew Tesfaye
Introduction
City Courts are formed as per Addis Ababa City Government Revised Charter Proclamation No 361/95 and Dire Dawa City Government Charter Proclamation No 416/96. Article 2 (10) of Federal Court Proclamation No 1234/2021 ( hereafter ‘the Proclamation’) defines City Courts as courts established pursuant to their respective Charters of City Administration of Addis Ababa City and DireDawa City. The new Federal Court Proclamation No 1234/21 has mentioned what it assumed the jurisdictions of the City Courts and broadened the civil jurisdiction of these City Courts. A brief discussion of these civil jurisdiction powers of the City Courts as mentioned by the Proclamation will be discussed here below.
Jurisdiction of City Courts on Civil Matter
The Proclamation provided on Article 5(1)(p) as the jurisdiction of City Courts the following: the issue of name change, disappearance, conviction, marital status, custody and guardian evidence or ownership of a house administered by the city administration, or any other dispute, subject to the jurisdiction of the city association, additionally civil disputes of money contracts, and loans between individuals up to Birr 500,000 (Five Hundred Thousand Birr)(bold added for emphasis). The reading and equivalent interpretation of ‘conviction’ in the Amharic text is ‘Judicial Interdiction’ and that of ‘association’ is ‘Edir’. With these in mind a discussion of these jurisdictional matters shall be dealt separately below.
1. Judicial Interdiction Cases
According to Article 351 of the Civil Code, courts have the power to pronounce the interdiction of an insane person where his health and his interests so require or where through permanent disability that he is unable to govern or administer himself or his estate. Consequently, the court shall appoint a guardian and tutor for such a person to carry out legal acts.
The pronouncement of judicial interdiction has previously been exercised by Federal Courts. But now the judicial interdiction pronouncement power is mentioned as falling under City Courts as per Article 5 (1) (p) of the Federal Courts Proclamation No. 1234/2021.
2. Civil Cases related to the ‘Edir ’ in the City
In the past, legal issues that arise related to Edir in the City were handled by Federal Courts. Now in accordance with Article 5 (1) (p) of the Federal Courts Proclamation No. 1234/2021, City Courts are mentioned as having the power to see legal cases concerning ‘Edir’.
3. Money, Contract and Loan Disputes between Individuals up to ETB 500,000
This is one of the most important powers of the Federal Court that is handed out to City Courts. According to the Proclamation, the jurisdiction of the City Courts is based on three main issues. First the dispute should be between individuals and not legal persons or businesses. And second the amount of money in dispute has to be up to ETB 500,000 and third the type of cases has to be money related, contracts and loans. Each of these three points shall be briefly discussed for clarity purposes below.
3.1. Disputes Between Individuals Only
Pursuant to Article 2 (9) of Proclamation No. 1234/2021, “person” is defined as a natural or juridical person. A natural person is an individual. As a result, disputes between natural persons or individuals will be entertained in City Courts given the amount involved is up to ETB 500,000 and the matter is about money, contract or loans. If a case is instituted by an individual against a juridical person, or the dispute is between two juridical persons or between a juridical person and individual, the case cannot be opened and entertained in City courts. In other words, cases involving juridical persons or business organizations will be outside the jurisdiction of City Courts and such cases will continue to be heard in Federal Courts.
However not all disputes involving individuals will go to City Courts. The Proclamation makes some exceptions. The Proclamation gives the power to Federal Courts when the individuals in dispute are permanently residing in different regions, regions and Addis Ababa, regions and Diredawa, Addis Ababa or DireDawa; when the individual plaintiff or defendant is a foreigner and the individuals involve the liability of officials or employees of the federal government in connection with their official responsibilities or duties.
Therefore, not all individual cases are assigned to City Courts. Except for powers maintained on the Proclamation to Federal Courts, City Courts are empowered to see civil cases involving individuals.
3.2.Money, Contract and Loan Disputes
For the City Courts to assume jurisdiction, the type of dispute between individuals has to be based on money, contracts and loans. The terms ’money’ ‘contract’ and ‘loan’ are broad terms. For example ‘money’ is defined in Black’s Law Dictionary as a general indefinite term for the measure and representative of value; currency; the circulating medium; cash. Similarly ‘contracts’ are defined as an agreement, upon sufficient consideration, to do or not to do a particular thing. ‘Loan’ is defined under Black’s Law Dictionary as bailment without reward; consisting of the delivery of an article by the owner to another person to be used by the latter gratuitously, and returned either in specie or in kind or a sum of money confided to another.
Thus, the definition of these legal terms are broad and as a result many forms of money or contract or loan types can be brought to the City Courts. However, Proclamation on Article 5(1) a-o and q identify special cases whereby the Federal Courts assume jurisdiction no matter what the dispute type is and the amount of money involved. For instance matters of private international law, enforcement of foreign judgments, matters involving nationality, bankruptcy, cases involving negotiable instruments, cases arising out of patent, literary and artistic ownership rights, cases involving insurance policy, application of habeaus corpus and cases involving the property of the federal government.
Hence with those exceptions mentioned in the Proclamation that require such matters to fall under the jurisdiction of Federal Courts, other cases involving individuals concerning money, contract or loan disputes can be presented to City Courts.
3.3. The Dispute Amount Should be up to ETB 500,000
The final basic departure on the jurisdiction of the City Courts is that the disputes between individuals based on money, contract or loan should be up to ETB 500,000(Five Hundred Thousand Birr). The maximum material jurisdiction of City Courts is ETB 500,000. The maximum is known but what about the minimum? Given the fact that for example Addis Ababa City Government Revised Charter Proclamation No 361/2003 on Article 50 gives Kebele Social Courts a jurisdiction over cases of property and money claimed where the amount involved does not exceed ETB 5000(Five Thousand), one can conclude that the City Courts material jurisdiction is between ETB 5000 to ETB 500,000.
Therefore City Courts’ material civil jurisdiction is with disputes involving individuals concerning money, contract or loan which the amount involved is between ETB5000 and ETB 500,000.
4.Intervening Party In Regional Matters
Now the jurisdiction of the City Courts is clear. What happens when there is an intervening party as per the Civil Procedure Code, for instance, Articles 40-43,358 and 418? The Proclamation tries to answer the question. Article 5(2) of the Proclamation provides that regional matter shall continue to be heard by regional court even where a party mentioned under Sub-Article (1)(h) of the Proclamation i.e. persons permanently residing in different regions, regions and Addis Ababa, regions and Diredawa, Addis Ababa or DireDawa or (n) of the Proclamation i.e. insurance companies intervene under any condition in the proceeding or after judgment.
Therefore, the regional courts will continue to hear the cases under the above two circumstances. Their jurisdictional power will not be affected. On the contrary, if the intervening party is for example, a federal government organ or non-insurance business organization, City Courts have to transfer the case to Federal Courts.
Conclusion
The Federal Courts Establishment Proclamation No 1234/2021 has listed what it calls civil jurisdictional powers of the City Courts of Addis Ababa and Dire Dawa as endowed to the City Courts by their respective Charters. The listing by this Proclamation included ‘judicial interdiction and Edir’ as part of the jurisdiction of the City Courts. The city of Addis Ababa and Dire Dawa, with their respective Charters have stipulated the jurisdiction of their City Courts. In addition to that the Federal Court Establishment Proclamation 1234/2021 transferred its power to City Courts to accept cases involving money, contract and loan between individuals up to ETB 500,000. While enjoying this additional jurisdictional power of City Courts, if an intervening party comes into picture during the proceeding or after judgment, the Proclamation has cleared the situation of what happens to the jurisdiction of City Courts.
For more information and to contact the writers contact us at info@dmethiolawyers.com

By Luwam Chalachew, Legal Assistant at DMLO, Email: info@dmethiolawyers.com and
Dagnachew Tefaye, Founder and Partner at DMLO, Email: dagnachew@dmethiolawyers.com

Introduction
This legal update reviews the key provisions included in the Federal Advocacy Service Licensing and Administration Proclamation No 1249/2021 which comes into effect on 5th August 2021. The new Proclamation on Federal Advocacy Service has introduced many changes. A brief look on those changes will be discussed here below.

Recognition to the Establishment of Legal Firm
Among the changes introduced by the new Proclamation on Federal Advocacy Service is recognition for the establishment of law firms. Law firms will be established in the form of limited partnership. This is indicated under Article 37 and following of the Proclamation. The Proclamation provides for the requirement and procedures of formation, scope, administration, duties as well as rights of law firms. As per Article 8 of the Proclamation, foreign national advocates and law firms are allowed to provide advocacy service in partnership with an advocate or law firm licensed in Ethiopia on cases that involve the law of the country that issued the foreign advocacy license.

The Power to Issue Advocacy License
Some changes are made on the issuance of advocacy licenses. According to Article 9 of the Proclamation, an advocacy license shall be issued by the Attorney General (now the Ministry of Justice) according to the decision of the Advocacy License Evaluation Committee. The Advocacy License Evaluation Committee will decide on an application within 30 days from the submission of a complete application. If the application is rejected, the Attorney General will notify the applicant in writing the grounds for rejection within 10 working days of knowing the decision of the Committee.

Types of Advocacy License
Article 11 of the Proclamation provides for the Federal Special Advocacy License in addition to the Federal First Instance Court Advocacy License and All Federal Courts Advocacy License. The Federal Special Advocacy License will be granted to a person or organization, law schools of higher education institutions, and teachers who will provide a free legal aid service upon fulfillment of requirements specified under Article 14 of the Proclamation.
The Proclamation also increased the minimum years of experience requirement for having a Federal First Instance Court Advocacy License from two to three years under Article 12(1).
Law school instructors will be able to be granted an advocacy license without having to resign from their teaching post as per Article 15 of the Proclamation.
Any grievances relating to the issuance of license will not be directly taken to the regular court. They will be appeal-able to the Advocates’ Administration Board according to Article 70(3). An appeal from the decision of the Board will be taken to the High Court within 30 days knowing the decision of the Board according to Article 73.

Advocacy Service Administration
The Federal Advocates Association will take part in the administration of advocacy service together with the Attorney General and the Advocate’s Administration Board. According to Article 57(3&4) it is mandatory for every advocate or law firm to become members of the Federal Advocates Association. Advocates Discipline Committee, Advocacy Profession Entrance Qualification Exam Committee, Advocacy License Evaluation Committee are also established under Article 75 and following respectively with their powers and duties.
The new Advocate Service Proclamation also provides mechanisms for reinstatement application under Article 90 and the following articles for an advocate or law firm who or which is punished for serious violation and disciplinary rules.

Continuous Legal Training
The Proclamation provides an obligation on any advocate to take legal training. The aim of the legal training as stated in Article 25 is to enable advocates acquire up-to-date knowledge and excellence to discharge their responsibilities. Accredited training institutions shall conduct the training.

Professional Indemnity Insurance
Every advocate or law firm is obliged to obtain an indemnity insurance policy for damage he or the law firm may cause on his or law firm’s client due to failure to discharge duty properly. Not only on advocates but also direct duty is imposed on insurance companies that issued insurance policies to advocates or law firms to report immediately the termination of the insurance policy or a situation arises that prohibits the performance of the insurance policy.

Conclusion
The Federal Advocacy Service Licensing and Administration Proclamation has introduced key changes in the licencing and administration of the legal profession. The changes as stated above modernize the profession and contribute to the legal discourse in a positive way.

By Luwam Chalachew, Legal Assistant at DMLO
Email: info@dmethiolawyers.com

Introduction
This article summarizes the decision of the Federal Supreme Court Cassation Bench regarding the preconditions for ordering change of venue. The case has been between applicant Mr. Asheber Awude vs.respondant Southern Nation Nationalities and People’s Region Welayta Zone Public Prosecutor seen on Cassation Bench File No189472 and decided on July 7,2021.

Regional High Court and Regional Cassation Court
The case was first brought to the Southern Nation, Nationalities and People’s Regional High Court by the applicant claiming change of venue. The applicant filed an application for change of venue to the High Court stating an impartial trial could not be held in the court in which the action was brought. Because the applicant said that he brought a petition against the court’s president, also a petition against two other judges who were judges on the trial and they were not impartial on those pleadings. The court after hearing both sides decided that even though the applicant stated that he petitioned against the judges he didn’t provide evidence that their case gets a final decision. The fact that the court’s president is exercising his administrative power cannot be ground for change of venue and dismiss the case. The regional Supreme Court Cassation bench also affirms the decision of the High Court.

Review by the Federal Supreme Court Cassation Bench
Application against decision of Regional High Court and Regional Supreme Court Cassation Bench was brought by the applicant stating basic error of law was made. The Federal Supreme Court Cassation Bench examines the appropriateness of application for change of venue due to the applicant’s conviction that court may not be impartial for the reason that he brought a disciplinary petition against the lower court’s president. The Cassation Bench uses black’s law dictionary to define change of venue. According to black’s law dictionary change of venue “is the removal of a suit begun in one country or district to another country or district for trial , though the term is also sometimes applied to the removal of a suit from one court to another court of the same country or district”.

In the case at hand change of venue is governed under Proclamation no. 84/1968 which was enacted in order to amend the Civil and Criminal Procedure Code. According to this Proclamation, application for change of venue in criminal cases can only be brought before hearing of evidence by the court for reasons that the court may not be impartial or the case is not ordinary nature or it is not convenient for witnesses.

After examining the case the court frames an issue stating, does the reasons that the applicant bases his claim be grounds for questioning the impartiality of the court or not? The Cassation Bench states that according to Article 78 and 79 of the FDRE Constitution judicial system in general specifically courts and judges are independent and free from any interference from any organ of the government. They will be accountable if they fail to do this. Methods for making the judicial system accountable are also provided under different laws. Among the methods that make a judge accountable include application for removal of a judge from a trial can be made if such judge cannot render a judgment impartially, request for change of venue, appeal and cassation can be mentioned. So if the applicant questions the impartiality of the President of the court, then he can ask for removal of that particular judge from the trial rather than asking for change of venue. The other thing the applicant brings as proof is reversal of lower court’s decision on litigation between him and the president’s relative by Cassation. The Cassation stipulated the mere fact that appellate court, or cassation reversing lower court’s decision doesn’t make such a decision as impartial. Appellate courts may affirm, reverse or remand the case to the lower court as per Article 337,341 and 348 of the Civil Procedure Code. Generally, even though, it is believed that the judges in the trial are not impartial, the solution will be removal of the judges from the trial and entertaining the case with other judges in the same court without change of venue. The Cassation Bench believed that this would be against the principles of the Constitution that courts are independent and impartial. Accordingly the Federal Supreme Court Cassation Bench affirms the decisions of lower courts including Regional Supreme Court Cassation Bench.

Dissenting Opinion
One judge expresses a disagreement with the majority opinion of the Cassation. The dissenting judge states that, the issue in this case should be, ‘are the reasons for application for change of venue enough grounds for making change of venue?’ Among the reasons for change of venue specified under Article 106(a) of the Criminal Procedure Code is whether the lower court can entertain the case impartially. So in our case the applicant specified the reasons for questioning the impartiality of Gamo Zone High Court’s. So the dissenting judge believed that the request by the applicant was appropriate and the lower court which rejected the application, the Regional Supreme Court Cassation division for not correcting the decision of lower court made a basic error of law.

Conclusion
The request for change of venue has to be based on conclusive evidence. If it can be corrected by asking for the removal of that particular judge or transferring the case to another bench, then change of venue may not be ordered.

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By DMLO in Collaboration with Adoption Advocates Organisation (AAO)

Any one who is interested to be a foster family for a vulnerable child has the option to do so because of the law on Foster Family and Domestic Adoption Directive No 48/2020. The document that need to be compiled are as follows:

Registration and Eligibility
The first thing to do is registration. Registration at the institution as an interested foster family. The ‘institution’ includes government or charity organization which have authority and licence from the Federal government to perform domestic and foster care adoption. This in particular includes government or licensed private orphanages. The institutions shall have responsibility to prepare registration form to be filled by potential families. The registration must also include the foster family needs, including age, gender, health status and other conditions of the child. The registered foster care family should fulfill eligibility requirements. The registered foster family must have Ethiopian nationality and solely reside in Ethiopia permanently. They should be above 25 years of age. Unless and otherwise there is no option, the child must only be given to married persons. Priority shall be given to a family who reside in the area where the foster child resides. Family must duly approve their willingness by written consent to foster the child. Family shall have sufficient economical capacity to raise the child. Foster family should be a person who has not convicted by a court of competent jurisdiction for offenses related children. Family must have medical certificate that enables them to raises the child.

Home Study
After making sure that the eligibility requirements are fulfilled, before the concerned authority placed the child to foster family, a home study shall be done. The concerned organ shall assess the foster family by attending home visits to acknowledge their psycho-social and economic conditions in accordance with the check list.

Evidences Concerning the Foster Family
The foster family should produce Ethiopian nationality identification card, birth certificate, medical certificate, police clearance certificate, marriage certificate and income evidences. Medical certificate should confirms they are completely free from transferable or uncured deceased so as to confirm their health capability to properly raise child.

Evidences Concerning the Child
Once the status of the foster family is assessed and completed, then the status of the child shall follow. General information of the child namely gender, age, language, religion (for a child capable of expressing himself/herself), place of birth and other related information, residential address of the child, birth certificate of the child, family status of the child (abandon, single or double orphan) and other related status shall be organized. The child physical, mental, psychological and health status, educational status of a child, economical status of a child, (for example acquiring property through inherits or grant) shall also be identified. If the child is found abandoned, name and address of the person who found the child, date, place and other related information’s must be organized.

Foster Care Agreement
Once the bonding activity is carried out, legally binding agreement shall be made between the institution and the foster family. If an agreement is signed between the charity institution and the foster family, the concerned governmental institution shall also sign as a witness. After the agreement is concluded, in order to protect economic and social rights of the child, the foster family may present its petition of guardianship to the competent court of law.

For further information you may contact us at info@dmethiolawyers.com

By Dagnachew Tesfaye, Founder and Partner at DMLO

Email: dagnachew@dmethiolaweyrs.com

Introduction
The Federal Supreme Court Cassation Division on Cassation File No 196228 on June 2,2021 passed a binding decision on the circumstances where by an agreement made through alternative dispute resolution mechanism is accepted for execution by a court of law.

Background
The case is between applicant Ato Demise Odda and respondent Ato Assefa Worku. The parties had concluded a compromise agreement on 26/11/2017 for demolition by the respondent of the party wall on or before 7/2/2018 and in case of failure, a penalty of ETB 40,000 shall be paid to the other party. The applicant sued the respondent for failure to respect the terms of the agreement and for the respondent to be penalized and forcefully perform his obligations under the agreement.

First Instance, Appeal and Cassation at Oromia
The case was filed at Oromia High court by the applicant. The suit by the applicant was for performance of obligation on the agreement and for the payment of the penalty. The respondent presented objections stating the case cannot be presented as a new suit rather execution should have been sought. For the facts of the case, the respondent asserted that he has performed his obligation contained in the agreement. The High Court said the respondent did not demolish the wall on the date mentioned on the agreement but on 9/11/2019. As a result the court rejected the objections of the respondent and ruled in favor of the applicant. The respondent is ordered to pay the penalty and clear the area. The appeal by the respondent to the Oromia Supreme Court was not accepted. So the respondent filed an error of law application to the Oromia Supreme Court Cassation Division.

The Oromia Supreme Court Cassation bench after accepting the application by the respondent and the response by the applicant decided the case based on the fact that the the parties had concluded a compromise agreement in which case not a direct court suit but an execution file should have been opened. The opening of a suit by the applicant was not acceptable procedure and the court quashed the rulings of the lower courts by majority vote. However the court kept the applicant’s right to file an execution case based upon the compromise agreement. Dissatisfied by the ruling, the applicant presented his application to the Federal Supreme Court Cassation Bench. The respondent was also summoned to give his response.

Federal Supreme Court Cassation Division
The Federal Cassation Court on its judgment looked into the details of how alternative dispute resolution mechanisms are structured under the Ethiopian Civil Code. Parties to an agreement either by themselves or through a third party mediator can reach an agreement and this agreement can be presented for execution by a cumulative reading of Article 3312 and 3324 of the Ethiopian Civil Code. The court said that the agreement of the parties is mediation as per Article 3318 and following articles of the Civil Code. The fact that Article 3312 state that ‘as between the parties, the compromise shall have the force of res judicata without appeal’ is a relevant provision for the case in dispute.

Thus a resolution of a dispute by the parties by themselves or by the help of a third party is considered a final binding ruling. Hence a new suit cannot be filed to a court on those mediated terms of the agreement. However, for the agreement to have the power of a judgment that can be presented for direct execution, the agreement should first be presented and approved by a court of law as per Article 277 of the Ethiopian Civil Procedure Code.

The agreement between the applicant and respondent was not presented and approved by a court as per Civil Procedure Code Article 277. Thus the Oromia Cassation Court’s ruling of a direct execution of the agreement and not a new claim was not in line with the scope of the Civil Code provision of Article 3312 and the behavior of the agreement of the parties. Therefore the Federal Cassation court reversed the Oromia Cassation Court’s judgment and concluded that the applicant’s suit followed the correct procedure and so it should be decided on the merits.

Conclusion
Any agreement by two or more parties either by themselves or with the help of a mediator or conciliator shall not have the effect of a judgment that can be presented for execution unless otherwise such agreement has been presented and approved by a court of law first. Such out-of-court mediated or compromise agreements are binding agreements between the parties but do not qualify as judgments that can go directly to execution. The party or parties that would like to enforce the agreement should present a new claim citing the agreement as an evidence.